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1 Managing Debt This fact sheet explains your legal rights and options, and provides contact details for organisations that may be able to help you. This fact sheet has been prepared as a guide only and is not to be used as a substitute for legal advice. As with any matter concerning a legal issue, you should seek independent legal advice. The information contained in this sheet is current as at February What should I do if I am having trouble paying my mortgage or other loans? Step 1: Contact your lender or Creditor and apply for hardship variation Creditor A person or company you owe money to. The first thing you should do is tell your lender (e.g. bank) or other person that you owe money to (your Creditor) about your situation. It is important that you do this as soon as possible. Consumer credit legislation in Australia allows for variations to the terms and conditions of loan agreements taken out for personal, household, or domestic purposes (such as mortgages, car loans, personal loans and credit cards). If your circumstances change, then you should ask your credit provider for a "hardship variation" (either orally or in writing). A hardship variation can: extend the term of the loan and reduce the amount of each payment; postpone a repayment until a future date; extend the term of the loan; or make other changes to the arrangement. Before approaching your Creditor you should think about what outcome you would like to achieve such as: Getting more time to make payments think about how much time you need. Reducing your ongoing repayments think about how much you can afford to pay. Debtor A person (you) who owes money to a Creditor. Hardship Variation An agreement between you and a Creditor, which changes your debt repayments due to a hardship you have suffered or are suffering. Creditors will often work with you as long as your proposal is reasonable, you keep up with the agreed payments, and you keep in touch with them. Many Creditors offer to suspend the requirement to make minimum home loan repayments for up to 12 Refinancing Replacing your months or to waive monthly fees. However, most Creditors will still charge interest current debt with a on the loan during this period. This means you should continue to make new debt with different repayment repayments in any amount you can afford. obligations. 1

2 You should be careful about accepting: any offers to refinance - as these may involve a higher interest rate; or any offers for additional loans or increases in your credit limit as this will increase your overall level of debt. What happens if my Creditor won t grant my hardship variation? If you apply for a hardship variation, the Creditor is legally required to respond to your request in writing within 21 days (unless it requires more information from you). If your Creditor refuses your hardship variation application, they must give reasons together with details of the relevant Ombudsman (see below). If you are not happy with your Creditor's response, you can ask to speak to their internal complaints section. If you are still not satisfied with the outcome, you can then lodge a dispute with the relevant Ombudsman. Alternatively, you may be able to take the matter to a court. Common Types of Debt Utility bills If you are having trouble paying a water, gas or electricity bill because of a natural disaster, you should contact the utility provider and ask for flexible payments. Most utility companies have hardship officers who can help you work out a plan to pay the bill in instalments. You should also ask whether they have any assistance programs available. If you are unable to reach a realistic agreement with your utility provider, you can: lodge a hardship assistance application with the ACT Civil and Administrative Tribunal (ACAT); and ask ACAT to make an interim order so that the utility provider cannot disconnect your supply until your application has been reviewed. ACAT can also assist you if you want to dispute a debt to a utility provider. You will find ACAT s contact details at the end of this fact sheet. Telephone and internet bills Telephone and internet service providers are required to have processes in place to assist people experiencing financial hardship. Most will allow you extra time to pay your account if you let them know about your changed circumstances. If you cannot reach a realistic agreement with your phone or internet service provider, you can lodge a complaint with Telecommunications Industry Ombudsman (TIO). The TIO can also assist you if you want to dispute a telephone or internet bill. You will find contact details of the TIO at the end of this fact sheet. Mortgage payments You still have a contractual obligation to repay your mortgage even if your home has been damaged or destroyed. A Creditor can usually charge you a higher rate of interest once you are behind in your repayments, plus legal and enforcement costs. They can also take you to court to sue you for the money you owe them, and even repossess your home. This is why it is important to contact your Creditor as soon as possible to try to negotiate a hardship arrangement. If you have been served with court documents, you may still be able to apply for a hardship variation with the Creditor. Contact the Consumer Law Centre for legal advice or Care Financial Counselling Service (Care Inc) for more information. You will find their 2 contact details at the end of this fact sheet.

3 Step 2: Contact the Ombudsman and seek dispute resolution for the loans If your attempts to resolve a dispute with a Creditor have been unsuccessful, you can lodge a complaint with the relevant Ombudsman: Financial Ombudsman Service (FOS) or the Credit Ombudsman Service Limited (COSL). If you are unsure which Ombudsman is relevant to your complaint, check the letter you should have received from your Creditor or contact the Ombudsman or do a search on their websites. The Ombudsmen s role is to fairly and independently resolve disputes between consumers and their Creditors. You can find contact details for FOS and COSL at the end of this fact sheet. Ombudsman Here, an officer who investigates complaints about the actions and decisions of financial service providers (Creditors). Once you have lodged a complaint with the relevant Ombudsman, they will look into the details of your situation, talk with your Creditor, and try to work out an agreement between you and the Creditor. This process may take a number of months. A Creditor must stop all enforcement action (including court proceedings) while the matter is being considered by the relevant Ombudsman. Any agreed outcomes must be set out in a written agreement. If you and your Creditor cannot agree, the Ombudsman will issue a written decision on your case which is binding on the Creditor. If you are still not satisfied with the outcome, you may take the matter to a court for hearing and determination. What should I do if I disagree with the amount I owe? If the debt is a credit card, personal or home loan, the Creditor has a legal obligation to provide you with statements of account showing the amount owing. If you disagree with the amount of a debt owing under a loan, you should first attempt to resolve the matter with the Creditor s internal dispute resolution section (sometimes called complaints section ). If this is unsuccessful, and you believe you still have a legitimate dispute, you should then lodge a complaint with the relevant Ombudsman. This should stop your Creditor from starting or continuing any legal action. What should I do if I get a letter from a Creditor or a court? If you get a letter of demand from a Creditor or are served with court documents, get legal help immediately. Contact the Consumer Law Centre of the ACT, a free legal service that specialises in debt and credit matters, or Legal Aid ACT to find out if you are eligible for legal aid. You can find their contact details at the end of this fact sheet. If you do not lodge a defence promptly, the Creditor may obtain a default judgment against you requiring you to pay all the money you owe (not just the arrears), plus interest and court costs. If the debt is your home loan, the court may also order the repossession of your home. Judgment Debt The order made by a court or tribunal demanding that you repay your debt is called a judgment debt. Please refer to our Judgment Debt Fact Sheet for more information. What happens if the debtor died? If someone with a debt dies their estate will be used to pay the debt. 3

4 An estate includes things like money, property and anything else owned by a deceased person. If the estate is not large enough to cover all of the debts, there will be no assets remaining for anyone to inherit. If you are a co-borrower with or guarantor for a deceased person, the Creditor is likely to require you to pay all of the debt. How should I manage paying back my debts? Find a financial counsellor Financial counsellors provide free advice for people with debt problems. They can help you work out how to pay back your debt, help you create a budget and talk to Creditors on your behalf. They can also give you names and numbers of other social services that may be of help to you during this difficult time. Care Inc is the main financial counselling service in Canberra. You will find their contact details at the end of this fact sheet. Using your superannuation You can apply for your superannuation to be released early on specific compassionate grounds or on grounds of severe financial hardship to help you manage your debts or save your home. You should contact the Department of Human Services (DHS) for additional information or visit their website: Specific compassionate grounds include: medical treatment if you need to pay for medical or dental treatment, for yourself or a dependant; medical transport if you need to pay for transport to medical or dental treatment, for yourself or a dependant; mortgage assistance if you need to prevent your home from being sold by the lender that has the mortgage for it; modification to your home and/or motor vehicle if you need to modify your home or vehicle to accommodate your own needs, or the needs of a dependant, in the case of a severe disability; care for terminal medical condition if you need to pay for palliative care for a person with a terminal medical condition, whether it is yourself or a dependant; funeral assistance if you need to pay for expenses associated with a dependant s death, funeral or burial. If you are seeking early release of your super on one of these compassionate grounds, you should apply directly to DHS for approval. On the other hand, on grounds of severe financial hardship, you can apply directly to your super fund. Generally, to be eligible, you must show that you are receiving certain Centrelink allowances 4

5 and unable to meet your reasonable and immediate living expenses. Contact your super fund for more information. Remember that you usually pay tax on your superannuation if you get it early, often between 20% and 25%. Contact the Australian Taxation Office to find out how much tax you will have to pay. Assistance from the Government The federal government offers a range of financial assistance programs. For example, you may be eligible for Special Benefit payment from Centrelink if you: are in severe financial hardship; for reasons outside your control, are not able to earn enough income to support yourself and your dependants; cannot get any other social security pension or benefit; meet certain residency requirements. For more information, visit the Special Benefits page on the Department of Human Services website provided below. Where to get help Financial Counselling Services: Care Inc - Financial Counselling Service Tel: (02) or (Free Helpline) Monday to Friday 9am 5pm Wednesday after-hours drop-in service 5.30pm 7.30pm Legal Services: Consumer Law Centre of the ACT Tel: (02) Monday to Friday, 9am 5pm Legal Aid ACT Tel: (Free Helpline) Monday to Friday, 8.30am 5pm 5

6 Government Agencies and Departments: Australian Taxation Office (ATO) Tel: (personal tax enquiries); (superannuation enquiries) Money Smart, part of ASIC Hardship Thresholds page: Tips for Managing Debts: Department of Human Services, Special Benefit Scheme Ombudsman Services: Financial Ombudsman Service (FOS) Tel: (General) Monday to Friday 9am 5pm Credit Ombudsman Service Ltd (COSL) Tel: Monday to Friday 9am 5pm Telecommunications Industry Ombudsman (TIO) Tel: Monday to Friday 9am 5.30pm Tribunal: ACT Civil and Administrative Tribunal (ACAT) Tel: (02) Street address: ACT Health Building, Level 4, 1 Moore Street, Canberra City 6

7 Language and Interpreting Services: Interpreters Translating and Interpreting Service (TIS) Tel: (24 hours a day, 7 days a week) Hearing impairment National Relay Service Tel: (TTY service) and (Speak and listen) (24 hours a day, 7 days a week) Having trouble coping? Someone can help. Please call the following counselling service hotlines or visit their websites for more information. Lifeline Tel: (24 hours a day, 7 days a week) Beyond Blue Tel: (24 hours a day, 7 days a week) 7

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